CMS Expert Guide to Crypto Regulation in Poland

Disclaimer: This chapter was last updated on 10th May 2024 and does not reflect any subsequent developments. The information provided is intended for general informational purposes and should not be construed as legal advice.

As mentioned in the above response, the Polish Draft Law adopting MiCAR has already been published. However, it is still at the drafting / consultation stage and its final version may vary.

The current version of the Polish Draft Law states that it will enter into force, with some exceptions, on 30 June 2024 and that the provisions related to providing crypto-asset services will apply from 30 December 2024. However, given the current legislation stage, we assume that the entry into force will be extended.

This Polish Draft Law (as well as MiCAR) will significantly change the regulatory environment and requirements for entities operating in the scope of crypto assets, including the necessity to obtain a full licence and the establishment of the supervision of the Polish Financial Supervision Authority over this market with its power to impose high financial fines on entities.

According to the current version of the Polish Draft Law, providers of virtual assets services will only be able to carry out crypto activities on the basis of a mere registration in the Polish VASP Register until 31 December 2025. After this date, such providers will have to obtain a fully-fledged licence granted by the Polish Financial Supervision Authority.

If you need any additional information related to MiCAR, please contact with our experts in this regard as indicated here: Legal experts on Markets in Crypto-Assets (MiCA) regulation (cms.law).

As of now, the only regulation in respect of crypto-assets per se in Poland is the AML Act.

The AML Act applies to entities that provide:

1. exchange between virtual currencies and fiat currencies,
2. exchange between virtual currencies,
3. intermediation in the exchange referred to in point 1 and/or 2,
4. the operation of virtual currencies accounts.

In practice, it covers mainly exchange offices, cryptocurrency stock markets and entities responsible for providing cryptocurrency wallets. 

Given that virtual currencies, as per their legal definition, are convertible into legal tender in business transactions and are accepted as a means of exchange, non-fungible tokens - NFTs, in principle, will not qualify as virtual currencies under the AML Act, hence, fall outside the scope of the AML Act. 

As regards direct sales of tokens by issuers, each case of such activity must be analysed on a case-by-case basis - the assessment of whether it is regulated depends on a number of specific conditions. 

Given the fact that as of now, there no specific rules relating to the provision of crypto-asset services, except for the AML Act, in general, offshore business is able to provide services on the basis of the freedom to provide services in Member States. 

If the national regulation of a given Member State requires obtaining an authorisation, as a rule, the relevant company may provide services in that Member State on the basis of the passive freedom to provide services or the reverse solicitation rule applied analogously to other regulated institutions performing services in the host country. 

As regards rules that will be binding under the MiCAR, any active solicitation by an entity from offshore country will require a licence issued by the Member State. Only very strict forms of the reverse solicitation will be allowed to be conducted by third countries without a licence. 

To conduct cryptoasset regulated activity, it is necessary to obtain an entry in the register of virtual currency activities. Obtaining such an entry involves only some formal requirements:

• individuals/shareholders authorised to conduct the affairs and represent the company/members of governing bodies, who conduct cryptoasset-related activities, as well as the beneficial owners of the entity conducting such activities cannot be convicted of intentionally committing one of the criminal offences enumerated in the law;
• the law requires that individuals carrying out cryptoasset activities must have knowledge and experience related to cryptoassets obtained through: (i) a training or course on the legal or practical aspects of cryptocurrency activities, (ii) performing activities related to cryptocurrency business for at least one year. Such knowledge and experience must be proven by appropriate documents;
• the entity applying for registration must submit an application in electronic form, containing: (i) name and surname/company’s business name, (ii) KRS and NIP numbers and (iii) indication of the provided cryptoassets services. The application must be signed with an electronic signature or personal signature. In addition, the application must be accompanied by a statement as indicated in Article 129f of the AML Act, confirming that the data contained in the application is true and accurate.

The Minister of Finance is obliged to make an entry in the register within 14 days of submission of an application and a statement.

Entry in the register of virtual currency activities is only subject to a stamp duty of PLN 616.

Legal and other professional fees will be necessary.

Registration is a formal requirement. If all the legal requirements required by the AML Act are met, the probability of success is rather high.

According to the Polish AML Act, conducting professional activities related to cryptoassets requires the fulfilment of obligations set out for obliged entities (e.g. the requirement to update the risk assessment) and applying financial security measures.